Changes in Military Commissions Fail to Impress Rights Groups

By William Fisher

Human rights advocates and legal scholars are voicing sharp criticism of President Barack Obama’s revisions to the Bush administration’s Military Commissions Act of 2006, characterizing them as unnecessary and saying the new law will lead to further delays and create a system of “second-class justice.”

One powerful advocacy group, the American Civil Liberties Union (ACLU), called on the Obama administration to “abandon the fatally flawed military commissions system and, where evidence of terrorism crimes exists, try the Guantánamo detainees in federal courts.”

Said the Center for Constitutional Rights, an advocacy group that has mobilized dozens of lawyers to defend inmates at Guantanamo Bay, “The use of military commissions will only lead to further delays in a process already long overdrawn. Any new system will inherently fall prey to growing pains and missteps, and years of appeals after trial to sort through the new legal uncertainties created today. Fundamental aspects of the system, such as who may be tried before such commissions, remain vague.”

The group added that the new law “includes ‘conspiracy’ and ‘material support’ as war crimes, contradicting the Obama administration’s prior position that they did not qualify as offenses triable by military commission.”

President Obama signed the new bill into law this week, as part of the National Defense Authorization Act (NDAA).

Other critics of the new legislation were able to point to some improvements over the prior measure. One of them is David Frakt, who served as an Air Force officer and military defense counsel with the Office of Military Commissions. Lt. Col. Frakt, who called the original military commissions “a catastrophic failure,” was defense counsel for a young GITMO prisoner, Mohammed Jawad, who was released this summer to his home in Afghanistan after years in confinement after a military judge ruled his confession was coerced.

Frakt, who has returned to his work as a professor at Western State University College of Law in Fullerton, California, told IPS, “Clearly, the new military commissions are a significant improvement, at least on paper, over the previous incarnations. The revisions to the hearsay rules and the establishment of a voluntariness standard for the admissibility of statements are the two most significant improvements.”

However, he added, “The military commissions are still fundamentally flawed in a number of respects. First, there is no requirement of any pretrial investigation, such as a preliminary hearing or grand jury. Second, there is no derivative evidence rule, or ‘fruit of the poisonous tree’ doctrine, so even if coerced statements themselves may be inadmissible, evidence derived from those coerced statements may still be admitted into evidence. Third, the MCA still authorizes the trial of detainees for a variety of offenses that are not traditional war crimes, including material support to terrorism, terrorism, conspiracy, and the invented offense of murder in violation of the law of war. Fourth, juveniles may still be subject to trial by military commission.”

Frakt said military commissions “are wholly unnecessary.” He told IPS, “Now that that the evidentiary rules in military commissions have been tightenened to more closely resemble the rules in federal courts, the real reason for the creation of military commissions -- the ability to gain easy convictions on tainted evidence -- has largely been removed. But the taint of the original process still lingers. The perception that the military commissions are a second-class option remains.”

Frakt cited remarks made by Sen. Lindsay Graham, a Republican from South Carolina, a leading proponent of military commissions. Frakt said, “Comments that these people are terrorists who don't deserve full Constitutional rights reinforces this idea. (Sen. Graham) is clearly prejudging the cases and affording a presumption of guilt, not innocence. The Constitution sets forth the minimum due process that we believe is necessary to ensure a fair trial. Why would we ever want to go below that?”

He said, “The criteria for determining which cases go to commissions and which to federal courts make no sense. Basically, the cases will go to federal court if the Justice Department wants the case and thinks they can prove it, and the rest of the cases will go to the military commissions. This is further proof that the commissions are a second-class option.”

An amendment to the law introduced by Sen. Graham would have blocked transfer of alleged 9/11 planners to federal criminal court. It was defeated 54-45. Christopher Anders, Senior Legislative Counsel for the American Civil Liberties Union (ACLU), told IPS he regarded this as “a big win.”

He said, “Thankfully the Senate has made the right decision by not tying the president’s hands when it comes to prosecuting detainees. Making it more difficult to prosecute detainees in our federal courts only serves to delay bringing them to justice.” He pointed out that the U.S. has successfully tried nearly 200 international terrorism defendants in federal courts since 9/11. “We have an American system of justice that works, and there is no reason not to use it,” he said.

The military commissions created by President Bush after the 9/11 attacks and subsequently authorized by Congress tried only three cases.

Others were equally scathing in their criticism of the new commissions. Francis Boyle, a law professor at the University of Illinois, characterized the commissions as “Obama's Kangaroo Courts.”

He told IPS, “The Gitmo Kangaroo Courts constitute war crimes under the Laws of War, the Four Geneva Conventions of 1949, and even the U. S. Army's own Field Manual.”

And Gabor Rona, international legal director of Human Rights First, told IPS, “The assertion that regular courts are for regular crimes and military commissions are for war crimes is false. If it were true, then why do we have a War Crimes Statute that creates jurisdiction in our federal courts?”

He added, “I'm particularly struck by this disconnect: the Task Force (appointed by President Obama) recognizes the historic limitation for use of military commissions, namely situations of ‘military necessity,’ which is properly understood as, for example, in situations of occupation where the usual mechanisms of justice are not operating. But then, despite acknowledging the success of federal court terrorism prosecutions, the Task Force sets out a series of considerations for deciding whether to send a case to military commission without due regard for the fact that federal courts are open and operating.”

Critics also pointed out what they termed other deficiencies in the new law. For example, they point out, the new bill also fails to include a sunset provision, making the system a permanent part of President Obama’s legacy.

Center for Constitutional Rights Executive Director Vincent Warren yesterday made the point even more starkly: “These are now President Obama’s military commissions: he owns them and all of the problems that come with them, and their inevitable failure will scar his legacy and embolden our critics in the world. Military commissions are an unnecessary, jury-rigged creation, second-rate in comparison to our legal system. Obama is tinkering with the Constitution for no good reason.”
The Obama administration is expected to announce its plans for prosecuting a number of Guantánamo detainees either in federal courts or before the Guantánamo military commissions by November 16. Several news organizations have reported that alleged 9/11 planners will likely be sent to federal criminal courts to be prosecuted by the Justice Department.